1989 (8) TMI 318 - HC - VAT and Sales Tax

Summary

Issues:
1. Dismissal of petition under article 226 of the Constitution challenging assessment orders and subsequent decisions.
2. Discretion of the Tribunal to admit fresh evidence in rectification proceedings.
3. Jurisdiction of Sales Tax Officer, Assistant Commissioner, and Tribunal in making the assessment.
4. Applicability of Supreme Court decision on liability to sales tax.

Analysis:

1. The appellant-assessee's petition challenging assessment orders and subsequent decisions was dismissed by the learned single Judge of the High Court. The Judge held that the Tribunal had the discretion to admit fresh evidence in the form of affidavits, and that this discretion was properly exercised. The appellant appealed this decision, arguing that the Tribunal should have admitted fresh evidence based on a Supreme Court decision. The High Court dismissed the appeal, stating that the rectification applications were not maintainable under section 62 of the Bombay Sales Tax Act as the alleged mistake was not apparent on the face of the record.

2. The appellant's counsel argued that the Tribunal had the discretion to admit fresh evidence under regulation 17 of the Bombay Sales Tax Tribunal Regulations, 1960. However, the High Court clarified that the discretion to admit fresh evidence is not relevant to rectification proceedings under section 62 of the Act. The Court found that the Tribunal did not exercise its jurisdiction wrongly in this case by refusing to admit additional evidence.

3. The High Court examined the jurisdiction of the Sales Tax Officer, Assistant Commissioner, and Tribunal in making the assessment. It was noted that there was no issue raised or finding given regarding whether the assessee was only serving eatables in the restaurant premises or also selling them to be taken outside. As a result, the Court concluded that there was no finding to support the appellant's argument of absolute lack of jurisdiction on the basis of not being liable to sales tax.

4. The appellant contended that the restaurant, which only served eatables and did not sell them, should not be liable to sales tax based on a Supreme Court decision. However, the High Court highlighted that for the Supreme Court decision to apply, there needed to be a finding that the assessee was only serving and not selling eatables in the restaurant. Since no such finding existed, the Court rejected the appellant's argument of lack of jurisdiction. Ultimately, the High Court upheld the decision of the Tribunal, concluding that no interference was warranted in this case.

Therefore, the High Court dismissed the appeal, upholding the Tribunal's order, and made no order as to costs.